This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Douglas Allen Crosby,
Dawn Rachelle Crosby,
n/k/a Dawn Rachelle Lawson,
Filed December 19, 2006
in part, reversed in part, and remanded
Beltrami County District Court
File No. F2-96-1386
Wright S. Walling, Sherri D. Hawley, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN 55402 (for appellant)
Ronald S. Cayko, Fuller, Wallner, Cayko & Pederson, Ltd., 514 America Avenue, Post Office Box 880, Bemidji, MN 56619 (for respondent)
Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Hudson, Judge.
In this custody dispute, appellant Douglas Allen Crosby claims that the district court abused its discretion by declining to modify the custody arrangement for his two children, J.T.C., born August 22, 1993, and L.C.C., born May 18, 1995. The original custody arrangement placed sole legal custody of the children with respondent Dawn Rachelle Crosby, but the parties shared physical custody of the children, with respondent caring for the children during the week and appellant caring for the children on weekends. Appellant moved to modify custody after the children were removed from respondent’s home as the result of a CHIPS petition. The home was found to be in a disheveled state and without proper heating; soon afterwards, respondent was discovered to be using methamphetamine. Appellant also claims that the district court improperly denied him the right to impeach a witness by refusing to admit evidence of a recorded phone conversation. Because the district court did not abuse its discretion in refusing to admit the impeachment evidence, we affirm in part. Because the findings are insufficient to allow us to conduct a meaningful review on the custody issue, we reverse and remand on that issue.
1. Admissibility of Evidence
Appellant required his children to digitally record their interviews with the court-appointed guardian ad litem. He challenges the district court’s refusal to admit one of these recordings during the evidentiary hearing on his custody modification motion. Appellant claims that the recording was made by L.C.C. and that it recorded the guardian ad litem’s interview with J.T.C. Appellant intended to use the recording to impeach the testimony of the guardian ad litem.
“A ruling on admissibility of evidence will be reversed only if it is determined that the trial court abused its discretion and that the abuse of discretion resulted in prejudice to the objecting party.” May v. Strecker, 453 N.W.2d 549, 554 (Minn. App. 1990), review denied (Minn. June 15, 1990). For several reasons, we conclude that the district court’s ruling was a proper exercise of its discretion.
First, appellant admitted that he did not have the tape recording in his possession and that he failed to disclose the existence of the recording to respondent. Second, appellant was unable to lay a proper foundation for admission of the recording because he was not present when it was made and neither of the children were present at the evidentiary hearing. Third, the district court’s ruling preserves the impartial role of the guardian ad litem by encouraging children to speak freely without fear of reprisal or undue influence by parents. See Minn. Stat. § 518.165, subd. 1 (2004) (giving court authority to appoint guardian ad litem “to represent the interests of the child” and to “advise the court with respect to custody”). Finally, the children knew the interview was being recorded, a fact that further undermined the reliability of this evidence. We therefore conclude that the district court did not abuse its discretion in declining to admit this evidence.
2. Modification of Custody
“Appellate review of custody determinations is
limited to whether the trial court abused its discretion by making findings
unsupported by the evidence or by improperly applying the law.” Pikula
v. Pikula, 374 N.W.2d 705, 710 (
Stat. § 518.18(d) (2004) states that a district court “shall not modify a prior
custody order” unless “a change has occurred in the circumstances of the child
or the parties and that modification is necessary to serve the best interests
of the child.” In applying this
standard, the district court “shall retain” the original custody arrangement
unless, among other circumstances, “the child’s present environment endangers
the child’s physical or emotional health or impairs the child’s emotional
development and the harm likely to be caused by a change of environment is
outweighed by the advantage of a change to the child.”
argues that the district court incorrectly concluded that if respondent
complied with the CHIPS reunification plan, she would be entitled to retain
custody of the children. The district
court’s order fails to demonstrate whether the court properly applied Minn.
Stat. § 518.18(d), including analysis of the children’s best interests. “Application of the standards outlined in
Minn. Stat. § 518.18 is not optional.” Reyes v. Schmidt, 403 N.W.2d 291, 293 (
Affirmed in part, reversed in part, and remanded.